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TO_BE__PUB
uyrrute Courf of "PR
2005-SC-000454-DG
CAPE PUBLICATIONS, INC.
D/B/A THE COURIER-JOURNAL
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NUMBERS 2003-CA-002040 AND 2003-CA-002049
JEFFERSON CIRCUIT COURT NO. 01-CI-003349
UNIVERSITY OF LOUISVILLE
FOUNDATION, INC .
APPELLEE
OPINION OF THE COURT BY JUSTICE CUNNINGHAM
AFFIR MING IN PART AND REVERSING IN PART
Appellant, Cape Publications, Inc., d/b/a The Courier-Journal (Courier-Journal),
appeals a decision of the Court of Appeals denying an open records request directed to
Appellee, University of Louisville Foundation, Inc. (the Foundation) . This Court granted
discretionary review to determine whether the Courier-Journal has a right to access
records of donations made to the Foundation under Kentucky's Open Records Act. For
the reasons set forth herein, the decision of the Court of Appeals is affirmed in part and
reversed in part.
I. Background
In April of 2001, the Courier-Journal made an open records request of the
Foundation, a fundraising arm of the University of Louisville. The Courier-Journal
sought disclosure of the identities of certain donors and the amounts of such donations .
The Foundation rejected the request, claiming that it is a private corporation not subject
to Kentucky's Open Records Act, KRS 61 .870 et seq. The Foundation also rejected the
request on the grounds that it would be an unwarranted invasion of the personal privacy
of each of these donors. The Courier-Journal filed suit in the Jefferson Circuit Court
pursuant to KRS 61 .882 .
Following cross-motions for summary judgment, the Jefferson Circuit Court
entered two orders. In the first order, the court held that the Foundation is a public
agency as defined by KRS 61 .870 and that corporate and private foundation donor
records are not exempt under the personal privacy exemption . The Foundation
disagreed and appealed that portion of the order which declared it a public agency .
However, the Court of Appeals affirmed . As to the applicability of the personal privacy
exception to corporate donors, the Court of Appeals remanded the issue to the trial
court for further fact-finding regarding the specific circumstances of the donations . The
Foundation's subsequent motion to this Court for discretionary review was denied.
During the pendency of the appeal, the parties continued to litigate the issue of
whether the personal privacy exemption applies to individual donors. The CourierJournal sought disclosure of approximately 47,000 individual donors who had not
previously been publicized . Of these 47,000 donors, 62 specifically requested that their
donations remain anonymous . By the second order, the trial court held that only the
names of the individual donors requesting anonymity were protected by the personal
privacy exemption . Both parties appealed .
The Court of Appeals affirmed in part and reversed in part, finding the donors'
interests in personal privacy superior to the public's interest in disclosure . Thus, the
Court of Appeals determined that the Foundation could withhold the identities of all
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donors, not simply those requesting anonymity. The Courier-Journal sought
discretionary review before this Court, which was granted .
II. Analysis
Kentucky's Open Records Act, KRS 61 .871 et seq . , seeks to ensure the free and
open examination of public records . This statute, however, is not without its limits. KRS
61 .878 sets forth certain types of documents that are exempt from public inspection
absent a valid court order. Included within this exemption are "public records containing
information of a personal nature where the public disclosure thereof would constitute a
clearly unwarranted invasion of personal privacy." KRS 61 .878(1)(a) (emphasis added) .
This exception reflects our society's recognition that "privacy remains a basic right of the
sovereign people[.]" Board of Educ. v. Lexington-Fayette Urban County Human Rights
Comm'n , 625 S.W.2d 109, 110 (Ky.App. 1981) .
Accordingly, we must apply a two-part test to determine whether the CourierJournal may compel disclosure of the Foundation donors . First, we must determine
whether the information sought is of a personal nature . Second, we must examine
whether the public disclosure of this information would constitute a "clearly unwarranted
invasion of personal privacy." We do this by weighing the privacy interests of the
persons involved against the public's interest in disclosure . Kentucky Bd. of Exam'rs of
Psychologists v. The Courier-Journal & Louisville Times Co . , 826 S .W.2d 324, 327-28
(Ky. 1992) . Because this inquiry involves a question strictly of law, our review is de
novo. Hardin County Schs . v. Foster , 40 S.W.3d 865, 868 (Ky . 2001) .
A. Nature of the Information
Turning to the first prong of our inquiry, we must take into account "the nature of
the information which is the subject of the requested disclosure ; whether it is the type of
3
information about which the public would have little or no legitimate interest but which
would likely cause serious personal embarrassment or humiliation ." Palmer v. Driggers ,
60 S .W.3d 591, 598 (Ky.App . 2001) . We consider not only the privacy interests of the
parties to the Open Records request, but also of persons who would be substantially
affected by the disclosure. Beckham v. Board of Educ. of Jefferson County, 873
S .W.2d 575, 578 (Ky. 1994) . We look for an indication that the information "touches
upon the personal features of private lives ." Zink v. Dep't of Workers' Claims, 902
S .W.2d 825, 828 (Ky.App . 1994) .
Here, the Courier-Journal seeks the identity of each donor to the Foundation, that
person's address, the amount of the donation, and any conditions placed upon the gift.
We have previously noted that one's "home address and telephone number are
generally accepted by society as details in which an individual has at least some
expectation of privacy[,]" notwithstanding that this information is normally available to
the public through other sources . Zink, id . at 828. Even more private is the amount of
the donation and the circumstances under which the gift was made . It is a widely held
societal belief that matters of personal finance are intensely private and closely
guarded . Zink , id . at 829. ("[F]ew things in our society are deemed of a more intimate
nature than one's income .") . Though not as intimate as one's income, the decision to
make a charitable gift, the amount of that gift, and its destination, is nonetheless a
personal choice of a private nature . Undoubtedly, the information sought by the
Courier-Journal in this matter is of a "personal nature ."
B. Public Interest in Disclosure
Having determined that the information is indeed "of a personal nature," we turn
to the more complex question of whether disclosure of this information would constitute
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a clearly unwarranted invasion of personal privacy. We have previously explained that
this inquiry "entails a `comparative weighing of antagonistic interests' in which the
privacy interest in nondisclosure is balanced against the general rule of inspection and
its underlying policy of openness for the public good ." Zink , id. a t 828, citing Board of
Exam'rs, id . at 327. Thus, the individual donor's privacy interest must be weighed
against the public's interest in disclosure of the donor's identity.
The stated goal of the Open Records Act is to ensure the "free and open
examination of public records ." KRS 61 .871 . "[I]nspection of records may reveal
whether the public servants are indeed serving the public, and the policy of disclosure
provides impetus for an agency steadfastly to pursue the public good ." Board of
Exam'rs, id . at 328 . Still, this Court has acknowledged that "the policy of disclosure is
purposed to subserve the public interest, not to satisfy the public's curiosity ." Id.
The public has a legitimate interest in the functions of the Foundation . As noted
above, the Court of Appeals determined that the Foundation is a public agency within
the meaning of the Open Records Act, and that ruling has not been disturbed by this
Court . The Court of Appeals' conclusion was predicated on the finding that the
Foundation and the University essentially act as one and the same, and that the
Foundation was established, created, and wholly controlled by the University. As a
public institution that receives taxpayer dollars, the public certainly has an interest in the
operation and administration of the University . KRS 164.810 et seq . See also CourierJournal & Louisville Times Co. v. Peers, 747 S .W.2d 125, 130 (Ky. 1988) (disclosure of
requested documents was required primarily because the information concerned "the
expenditure of public funds"). The Foundation's stated goal is to advance the charitable
and educational purposes of the University of Louisville. To this end, it solicits,
5
receives, and spends money and other assets on behalf of the University. The public's
legitimate interest in the University's operations then logically extends to the operations
of the Foundation .
Moreover, the Courier-Journal has argued, and we agree, that certain donors
may not simply wish to conceal their identities, but rather may wish to conceal the true
purposes of their donations. Donors, particularly those making substantial gifts, may
wish to influence the University's decisions and policies, or to have some type of benefit
conferred upon them by the University . The record supports this contention - several
anonymous donors specifically indicated that their gifts were being made with the
understanding that they would receive tickets to athletic functions . Accordingly, we
agree that the public's interest is particularly piqued by large donations from anonymous
donors, and that a legitimate question of influence is raised by such circumstances .
C. Privacy Interests at Stake
We now turn to the privacy interests of the Foundation's donors. It is here that a
distinction must be drawn between those donors who requested anonymity and those
who did not. Of the 47,000 donors to the Foundation whose identities have not
previously been publicized, 62 specifically requested that their identities be withheld .
Many of these 62 persons demonstrated their desire for anonymity by checking a box
on the Foundation's donor form which specifically asks whether the donation is
"anonymous ." Others directly asked the Foundation to withhold their identities . Five
requested anonymity verbally .
1 . Non-Anonymous Donors
We agree with the trial court's conclusion that the privacy interests of those
donors not requesting anonymity are minimal . It is commonplace that a charity or other
6
organization collecting donations will publish a list of donors and sponsors as a way of
recognizing those persons and advertising the success of its fundraising efforts . In fact,
for some persons, the fact that his or her name will be included in a publicized list is
itself an incentive to make a donation or gift to the organization . We are not persuaded
that this set of donors held a legitimate expectation of privacy in their donations .
When balanced against the public's interest in disclosure, the privacy interests of
the non-anonymous donors do not outweigh the need for public disclosure of these
donors' identities . We agree with the trial court that the non-anonymous donors had a
very minimal expectation of privacy in making the donations . Moreover, though
personal in nature, the information sought by the Courier-Journal does not involve the
revelation of intensely private information, such as personal income or medical history .
The public, on the other hand, has a legitimate interest in the amounts and sources of
monies donated to the Foundation, which ultimately fund the University . Particularly, in
light of the donors' lowered expectations of privacy in this circumstance, we do not
believe that disclosure of these non-anonymous donors' identities would constitute a
"clearly unwarranted invasion of personal privacy" within the meaning of the Open
Records Act. Therefore, we reverse the Court of Appeals as to the group of donors not
seeking anonymity.
2 . Anonymous Donors
The 62 donors who requested anonymity, however, are positioned differently
than the remaining donors. At the time of each of these anonymous donations, the
status of the Foundation was unclear . The Court of Appeals had not yet determined
that the Foundation was a public entity for purposes of the Open Records Act. In fact,
at the time these donations were made, the Foundation's status had only been
7
considered within the context of Kentucky's Open Meetings Act, KRS 61 .800 et seq . In
Courier-Journal and Louisville_Times Companv v Unive rsity of Louisville Board of
Trustees , the Court of Appeals concluded that the Foundation was not a public entity as
defined in KRS 61 .805(2). 596 S .W.2d 374, 376 (Ky. App. 1980) . It is also important to
note a 1986 Opinion of the Attorney General, which evaluated the privacy interests of
donors who had made contributions directly to the University. Ky. OAG 86-76 . The
Attorney General concluded that such donations fell within the privacy exception set
forth in KRS 61 .878 .
As the Foundation's status as a public entity was not clearly established prior to
the Court of Appeals' decision in this case, it was certainly reasonable for each donor to
believe that the donation was being made to a private entity . Furthermore, the donors
were specifically asked whether their donations were to be anonymous . In fact, the
record reveals that a promise of anonymity was a condition of certain donors' gifts.
When an organization gives a donor the option of anonymity, it is certainly natural to
assume that the recipient actually have the ability to honor the request . More
importantly, when persons make anonymous donations to a private entity, it is not
expected that the donors' identities and details of the gifts will be made available to the
public . For these reasons, the anonymous donors' expectations of privacy were
heightened, and the disclosure of their identities constituted a clearly unwarranted
invasion of personal privacy.
When weighed against the public's interest in the source of Foundation funds and ultimately, University funds - we conclude that the anonymous donors' interests in
privacy are superior in this instance . Moreover, we note that there is no evidence in the
record that would heighten the public's interest in disclosure of the anonymous donors'
8
identities or otherwise affect this conclusion . The trial court conducted an in camera
review of the 62 anonymous donors, including additional information concerning the
circumstances of the gifts, and considered arguments by the Courier-Journal favoring
disclosure . The trial court found nothing in the sealed records that would heighten the
public's interest in the identities of these donors . Following our review of the sealed
documents, we reach the same conclusion . Simply put, the arguments propounded by
the Courier-Journal do not create a compelling enough public interest in the
circumstances of the anonymous gifts to warrant disclosure of these donors' identities .
Thus, we affirm the Court of Appeals as to the 62 donors seeking anonymity.
However, we must emphasize that our holding with respect to the anonymous
donors turns primarily on the fact that each donor believed, at the time of the gift, that
the donation was being made to a private entity . By virtue of the Court of Appeals'
opinion, future donors to the Foundation are aware, and on notice, that their gifts are
being made to a public institution and, therefore, are subject to disclosure regardless of
any requests for anonymity.
In summary, this Court holds that the names of the Foundation donors are
subject to the disclosure requirement of KRS 61 .871 . Excepted, however, are those 62
persons who requested anonymity and who made donations to the Foundation prior to it
being declared a public entity . Accordingly, we reverse the Court of Appeals in part and
hereby reinstate the order of the Jefferson Circuit Court .
Noble, J., and Special Justices, F. Kenneth Conliffe and David V. Kramer,
concur. Minton, C .J ., concurs in part because he agrees with the majority's conclusion
that the donors who did not request anonymity should not receive it; but he dissents
from the majority's conclusion that any donors should receive anonymity because his
9
examination of the law has caused him to conclude that there cannot be an anonymous
donation to a public institution . Scott, J ., concurs in part and dissents in part by
separate opinion. Venters, J., not sitting .
COUNSEL FOR APPELLANT :
Jon L. Fleischaker
Robert Kenyon Meyer
Jeremy Stuart Rogers
Dinsmore & Shohl, LLP
1400 PNC Plaza, 500 West Jefferson Street
Louisville, KY 40202
COUNSEL FOR APPELLEE :
T. Kennedy Helm, III
Michael D. Risley
Stites & Harbison, PLLC
400 West Market Street, Suite 1800
Louisville, KY 40202-3352
RENDERED : AUGUST 21, 2008
TO BE PUBLISHED
,*UyrrMr (~Vurf
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2005-SC-000454-DG
CAPE PUBLICATIONS, INC.
D/B/A THE COURIER-JOURNAL
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NUMBERS 2003-CA-002040 AND 2003-CA-002049
JEFFERSON CIRCUIT COURT NO. 01-CI-003349
UNIVERSITY OF LOUISVILLE
FOUNDATION, INC.
APPELLEE
CONCURRING IN PART AND DISSENTING IN PART OPINION
BY JUSTICE SCOTT
While I concur with most of the majority's opinion, I respectfully dissent from the
opinion's lately added "dicta" that in the future all donors to the Commonwealth's public
institutions of higher education will be denied the right to privacy regarding charitable
gifts, even if they request anonymity. This court simply does not have the right to
pronounce decisions for future courts, or Attorney Generals, on facts that are not before
us. Especially one founded on such an unwise policy.
Consider for example :
In an age where the names of wealthy philanthropists adorn buildings on
college campuses and are routinely plastered on everything from
orchestra programs to park benches, it's worth noting that many givers
take pains to avoid recognition for everything from religious reasons to
fear of being deluged with additional requests for donations .
Todd Wallack, Why Some Big-Time Donors Like to Stay Under Wraps ; When Discretion
is the Better Part of Philanthro_ ._phy, S.F. Chron ., Dec. 17, 2006, at 11 .
An integral part of the operation of any university or college is the school's
efforts to raise funds and secure donations . Perhaps some persons enjoy
whatever publicity they receive as the result of their donations. However,
other persons or organizations prefer that their efforts and consideration to
donations be kept confidential . This may be particularly true in the case of
those making or considering the making of large donations since if this
becomes known, generally, they may be contacted and pressured by
many other organizations seeking donations . Thus, the expectation of
privacy of the donors or potential donors in this particular situation is of
importance .
Therefore, it is the opinion of the Attorney General that the University's
refusal to release the names of the donors and potential donors on whose
behalf the University expended money in connection with University fund
raising efforts can be supported by the privacy exception set forth in KRS
61 .878(1)(a) of the open Records Act . . . .
Ky. OAG 86-76 .
Moreover, the "purpose [of the Open Records Act] is not fostered . . . by
disclosure of information about private citizens that is accumulated in . . . government
files that reveals little or nothing about an agency's own conduct ." Zink v. Com., Dept.
of Workers' Claims, Labor Cabinet , 902 S .W.2d 825, 829 (Ky. App. 1994) . And, as has
been noted in Zink , 902 S .W.2d at 828 and Hines v. Com ., Dept. of Treasury , 41
S.W .3d 872, 895 (Ky. App. 2001), if this information is open to one it is open to all,
inviting unwanted attention and, as here, unwanted intrusion .
So what public interest could we possibly serve by thumbing our noses at
potential wealthy donors who simply will not give if they have to suffer an aftermath of
harassment by professional fundraisers? "Benevolent individuals who choose to give
should not have their generosity punished with unwanted telephone appeals and
inundated mailboxes." Bruce Mohl, Most Charities Sell Names of Donors ; Nonprofits
Also Swap Lists to Raise Funds, Watchdog Group Says, The Boston Globe, Dec. 2,
2004, at E1 . Also consider, that every court that has reviewed the question of
anonymity for the sixty-two donors that requested it here, including the sealed records,
found nothing of interest, or that would benefit, the public good as envisioned by the
Open Records Act. As to those that would seek to abuse the process of giving, they
would be caught and disclosed anyway in all situations such as this by the Court's in
camera review, which was surely appropriate here . KRS 61 .882(3).
At a time when the cost of education is rising, including public tuition, we should
be seeking more financial help for those who cannot afford an education, not turning it
away with an "I don't care" attitude. So just what are we achieving by suggesting that
anonymity will be denied in all future cases? Nothing - but hurting Kentucky's children .
Yet hopefully, however, those wealthy donors that are fearful of the future status
of anonymity will still give - just maybe to private colleges . Yet, I hate to see our good
public institutions put to such a disadvantage without good reason . Thus, I must
strongly dissent to the revocation of anonymity forecasted by the fearful "dicta" of the
majority's opinion .